1 SUBJECT OF THE CONTRACT, CONCLUSION OF THE CONTRACT, SCOPE OF SERVICE OF THE SOFTWARE
1) The subject of these General Terms and Conditions is the provision, on the basis of a lease, of the Empolis Knowledge Express software (hereinafter referred to as “the Software”) for use via the internet by the Customer.
2) These Terms and Conditions apply only vis-a-vis entrepreneurs as defined in Section 14 of the German Civil Code (BGB), legal persons under public law and special funds under public law.
3) Any terms and conditions issued by the Customer that deviate from, contradict or exceed the scope of these Terms and Conditions shall not constitute part of the Contract even if known to us, unless we expressly confirm their validity. These Terms and Conditions shall also apply in cases where we execute the Contract without reservation in the knowledge of conditions issued by the Customer that contradict, deviate from or exceed the scope of these Terms and Conditions.
4) Our offers are subject to change without notice. By submitting an order, the Customer declares a binding intention to order the specified services. We are entitled to accept the contractual offer concurrent with the Customer’s order within a period of one week. This acceptance may be declared either explicitly or through the provision of the service ordered.
5) The Software’s scope of service can be found in the product description, which can be accessed at www.knowledge.express. No other public statements on the characteristics of the Software may be used to determine its condition. We are entitled to make adjustments to the Software’s scope of service at any time, provided said adjustments are reasonable for the Customer and especially if the scope of service is expanded or the adjustment in question is necessary in order to meet statutory requirements or guarantee security of operation for the Software.
2 PROVISION OF THE SOFTWARE
1) We shall provide the Software, including storage space for saving user data in the scope agreed with the Customer, via the Internet as specified by this Contract, starting on the date agreed with the Customer.
2) At the Customer’s request and on the basis of a separate agreement, we shall provide training on the set-up, operation and use of the Software, or shall set up the Software completely, in accordance with the agreements concluded with the Customer.
3) We use a server located within the European Union to provide and run the Software. The Software and the servers used are protected against unauthorized access, data loss and data eavesdropping in accordance with the security precautions that are usual for products and services of this type according to the proven state of the art.
4) The Customer has no entitlement to a specific server for their sole use; instead, we may have several instances of the Software running on one server, depending on feasibility in terms of the server’s performance capacity and provided our customers’ datasets are separated.
5) We shall issue the Customer a user name and user password for their first user. The Customer should change the password without delay to a password known only to them. This user account will be the first administrator account for the Customer. The Customer can use this account to set up the Software and add additional users.
6) A Chrome browser in the newest or at least the most recent previous version must be used in order to utilize the Software.
3 NEW VERSIONS OF THE SOFTWARE, QUALITY ASSURANCE
1) We shall make new versions of the Software available at our discretion, this does not apply to the rectification of defects.
2) We are entitled to use the data stored in the Software by the Customer for quality assurance of new versions of the Software before making said new versions available to the Customer (e.g. test runs), and to train the Software using this data in order to provide new functionalities (e.g. training for automatic recognition of new data categories).
3) We shall inform the Customer within an appropriate period of time of any significant changes to the Software where said changes could result in changes or restrictions to the usual applications of the Software.
4 CUSTOMIZATION OF THE SOFTWARE
1) At the Customer’s request, we shall provide them with quotations for custom extensions to the Software within the scope of the options planned by us (“Cloud Extensions”). We shall indicate to the Customer based on our best judgment if it may only be possible to incorporate the desired customization into new versions of the Software only manually and in exchange for remuneration to be agreed separately, rather than automatically.
2) For the term of this Contract, the Customer shall acquire the same rights to customizations as to the Software. Otherwise, we hold all rights to the customization.
5 AVAILABILITY OF THE SOFTWARE
1) The Empolis Software offers a Software availability at the handover point (interface to Internet in the computing center where the Software is running) of 99.5% per Contract month.
2) The Parties hereby agree that the term “Software availability” shall be defined as the ability to use the software at the handover point.
3) The following periods are not taken into consideration when determining whether the assurance of availability has been upheld:a) Disruptions or impairments to the technical infrastructure required for the use or execution of the Software or the Internet, unless we or our vicarious agents are responsible. b) Planned non-availability of the Software for the purpose of maintenance work, primarily at low-use times, provided we announce this at least one week in advance. In urgent cases when required in order to guarantee the security of the Software systems and the data stored therein (e.g. important security updates), maintenance windows may be announced and implemented with an advance notice period appropriate to each particular case.
6 USE OF THE SOFTWARE BY THE CUSTOMER
1) The Customer shall receive simple (non-sublicensable and non-transferrable) rights to the Software, limited to the term of this Contract, for use of the Software in accordance with the Contract. Granting of the possibility of use to employees of group companies as defined in Sections 15 and 16 of the German Stock Corporation Act (AktG) is not permitted unless expressly agreed otherwise with us.
2) The Customer shall take usual and appropriate precautions to prevent unauthorized use of the Software via the user names and passwords they use. The Customer shall inform us immediately if they suspect that the login data and/or passwords could have become known to unauthorized persons and shall, to the extent possible, immediately take security measures against such access by changing the password. The Customer shall immediately delete or change the login data of any employees who leave their company.
3) In the case of misuse of the user names and/or passwords they use, the Customer shall bear the burden of proving that the Customer is not responsible for such misuse. In the event that we have access to the relevant proof, we are obligated to inform the Customer accordingly.
4) The Customer may not use the Software for illegal purposes or in violation of third-party rights. In particular, they shall refrain from any use that could open us up to accusations of violating applicable laws or third-party rights. They shall hold us harmless with respect to all relevant, justified third-party claims, including reasonable costs of legal investigation and representation.
5) If the customer violates the provisions from the paragraph 4 for reasons for which they are responsible, we may block their access to the Software or to usage data if the violation can thereby be demonstrably remedied. To the extent reasonable for us, we shall request, with indication of an appropriate deadline, that the customer remedy the violation. If the Customer continues to violate or repeatedly violates the provisions above despite appropriate warnings, and if they are responsible for this, then we may terminate the contract in an extraordinary fashion without adherence to a notice period.
6) The Customer is obligated to report any defective contractual services to us immediately, especially defective Software. Should the Customer fail to report defects promptly for reasons for which the Customer is responsible, this shall constitute contributory culpability or contributory negligence. If we are unable to remedy the situation as a result of the failure to report or delay in reporting, the Customer shall not be entitled to decrease the agreed amount of remuneration in whole or in part, to request compensation for the damage resulting from the defects, or to terminate the Contract for cause without notice. The Customer must demonstrate that they are not responsible for the failure to report.
7 USE OF API
1) Knowledge Express shall make available an API (software interface) that it can use to create a connection between the Software and other systems.
2) The particular information published by us shall apply for the use and scope of function of the API.
3) The Customer is entitled to use of the API for the term of this Contract, provided such use is a component of the price model they have booked.
8 VIOLATION OF PROPERTY RIGHTS
1) We guarantee that the contractual use of the Software will not violate any copyrights or other third-party property rights.
2) In the event that such a violation occurs despite this guarantee, we shall, at our discretion and expense, either acquire the necessary rights or alter the Software in such a way that we can continue to provide the services owed to the Customer without violating third-party rights.
9 REMUNERATION
1) In return for our services, we are entitled to the remuneration agreed with the Customer. We shall bill for said remuneration in advance for each contractual year. If the contractually agreed storage and traffic contingents are exceeded, we reserve the right to charge for the actual amount of data used by the user in accordance with our current price list.
2) We are entitled to send invoices to the Customer in digital form.
10 NON-FULFILLMENT OF PRIMARY SERVICE OBLIGATIONS OWED BY US
1) If we are delinquent with the initial provision of the Software, the Customer is entitled to withdraw from the Contract if an appropriately set grace period passes without results, i.e. if we do not make the agreed Software functionality initially available within the grace period.
2) If we fail, either wholly or in part, to meet the obligations owed by us following the provision of the Software in an operation-ready state, and if the owed availability of the Software is not met for a Contract month, the agreed monthly flat fee for use shall be decreased on a pro-rated basis for the period during which the Software was not available to the Customer in the agreed scope.
3) We must prove that we are not responsible for the cause of the delayed provision or the failure to meet the owed availability. If the Customer fails to report the lack of Software availability to us and we deny knowledge of same, the Customer must prove that we became aware of the lack of availability in some other way.
11 WARRANTY CLAIMS
1) Unless otherwise agreed below, the statutory provisions apply.
2) We are responsible within the limits of the law for selecting the type of subsequent performance.
3) The statute of limitations for warranty claims is one year. This does not apply to claims made due to to defects, in this respect the liability regulation applies.
4) We assume no liability, regardless of culpability, for damages pursuant to Section 536a of the German Civil Code (BGB) resulting from defects that were present upon conclusion of the Contract.
12 LIABILITY
1) Unless otherwise agreed below, liability shall be based on the provisions of law.
2) Liability for intent and gross negligence is unlimited.
3) In the event of negligent violation of fundamental contractual obligations, the liability shall be limited to the cost of foreseeable damages typical for the Contract. A fundamental contractual obligation is an obligation the fulfillment of which is essential to the correct execution of the Contract and the observance of which is something the other Party can usually expect to be upheld. The statute of limitations for claims pursuant to this paragraph is one year.
4) The liability for foreseeable damages typical for the Contract pursuant to Paragraph 2 shall be limited to six times the fee for use paid by the Customer in the month in question.
5) Paragraph 2 shall not apply to claims arising from injury to body, health or life, in the event of fraudulent conduct, in the event of the assumption of a guarantee, in the event of liability for complete incapacity or impossibility as well as for claims under the German Product Liability Act (Produkthaftungsgesetz).
6) In all other respects liability is excluded.
13 TERM, TERMINATION
1) The contractual relationship shall enter into force upon conclusion of the Contract, with a fixed term of one year. During the fixed term, it may only be terminated for good cause.
2) Termination is possible at the end of each fixed term with a notice period of three months. If no notice of termination is given, the fixed term shall be renewed for an additional year in each case.
3) The right to termination for good cause remains unaffected. The following reasons in particular shall be considered good cause if they exist for the other Party:
a) The violation of fundamental contractual obligations by the other Party, providing said violation is not remedied despite a warning and the setting of an appropriate grace period. No warning or grace period shall be required in situations where issuing said information would constitute unreasonable effort.
b) Application by Party itself for the initiation of insolvency proceedings, the initiation of insolvency proceedings against the Party by a third party, or rejection of such an initiation due to a lack of assets. c) Complete default on payment by the Customer for two consecutive months or default on payment for a period of more than two months, provided the Customer is in default on payment with amounts that are equivalent in total to the remuneration for at least two months.
14 DISCLOSURE OF CUSTOMER DATA UPON TERMINATION OF THE CONTRACT
Upon termination of the Contract, the Software shall be deactivated for the Customer, and the Customer data stored in it shall be archived for a period of 30 days. During this period, the Customer may request a copy of their data for download. Once this 30-day period has passed, the data shall be deleted, even if it has yet to be downloaded by this time. The Customer data shall be made available in the format in which it is stored in the Software.
15 CONFIDENTIALITY
1) We obligate ourselves to confidentiality with regard to the customer’s business secrets. Business secrets are information or knowledge on the part of the customer that are made known to us in the context of this contract (e.g. through storage of data in the Software). It is not necessary for a business secret to be marked as such.
2) The following types of trade secrets are not subject to confidentiality: (i) those that were generally known at the time of transmission or – through no fault on our part – become generally known thereafter; (ii) those that were already legally known to us at the time of disclosure and were not subject to a confidentiality obligation at this time; (iii) those that are legally made known to us by third parties after the time of transmission and are not subject to a confidentiality obligation, either on our part vis-a-vis the third party or on the part of the third party itself vis-a-vis the Customer; (iv) those that have been developed by us independently without any use of confidential Customer information; (v) those that become known to us through the permissible analysis of publicly obtainable services or Customer products; (vi) those that must be disclosed due to compelling provisions or decrees of law, the regulatory authorities or the courts.
3) We are obligated to keep the Customer’s trade secrets confidential and to not make it possible for any third parties to gain knowledge thereof. We shall only grant access to the Customer’s trade secrets to those employees and third parties that are familiar with the provision of services under this Contract and have undertaken to maintain confidentiality in accordance with the specifications of this Contract at a bare minimum. Upon request by the Customer, we must prove that this is the case.
4) This Confidentiality Agreement shall not be affected by termination of the Contract.
5) With regard to ensuring the protection of personal data, the order processing contract shall apply where such has been concluded separately between the Parties. If no such contract exists, we undertake to observe the legal provisions with respect to data protection.
16 DATA PROTECTION
If the Customer wishes to store or process personal data in the Software, we are prepared for order processing pursuant to Art. 28 of the GDPR for conclusion of our Contract. Further information on data protection can be found in the “Empolis Knowledge Express Privacy Policy”.
17 FINAL PROVISIONS
1) This Contract contains all of the Parties’ agreements concerning the subject of the Contract. Any secondary agreements that differ from the Contract and any previous agreements on the subject of the Contract are hereby rendered ineffective.
2) Any changes or addenda to this Contract must be made in writing, unless a more stringent form is prescribed by law. This also applies to any waiver of this requirement for written form.
3) The Customer’s general terms and conditions do not apply to this Contract. This shall remain the case even if the inclusion of such terms and conditions is mentioned without objection in later documents related to this Contract.
4) Should any provision of this Contract be or become void, ineffective or unenforceable, either in whole or in part, or if a provision that is necessary has not been included, the effectiveness and enforceability of all the remaining provisions of this Contract shall not be affected.
5) The Contract is governed solely by the laws of the Federal Republic of Germany. Unless mandatory, private international law does not apply.
6) The sole place of jurisdiction for all disputes arising in connection with this Agreement shall be our registered office. We are also entitled to file claims against the Customer at one of their statutory places of jurisdiction.